Lakhan Mahto & Ors Vs. State of
Bihar [1966] INSC 55 (24 February 1966)
24/02/1966 RAMASWAMI, V.
RAMASWAMI, V.
SUBBARAO, K.
CITATION: 1966 AIR 1742 1966 SCR (3) 643
CITATOR INFO :
D 1990 SC1180 (11)
ACT:
Code of Criminal Procedure (Act 5 of 1898), s.
423-Appeal against conviction, no appeal against acquittal-Power of Appellate
Court.
Indian Penal Code, 1860 (Act 45 of 1860), s.
149-Substantive offence, if.
HEADNOTE:
The trial court acquitted L, one of the
appellants of the charge under s. 302 I.P.C. but convicted him and the other
appellants under s. 149 I.P.C. and ss. 302/149 I.P.C. The State Government did
not prefer an appeal to the High Court against the acquittal of L under s. 302
but on appeo preferred by L against his conviction, the High Court altered the
conviction from a. 302/149 to a minor offence under s. 326 and maintained the
sentence of life imprisonment imposed upon him. In appeal to this Court :
HELD : The High Court acted without
jurisdiction in altering the finding of acquittal of L on the charge under s.
302 I.P.C. and convicting him on the charge under s. 326 I.P.C.
and imposing a sentence of imprisonment on
that charge.
If an order of conviction is challenged by
the convicted person but the order of acquittal is not challenged by the State
then it is only the order of conviction that falls to be considered by the
Appellate Court and not the order of acquittal. In exercising the powers
conferred by s.
423(1)(b) of Code of Criminal Procedure the
High Court could not convert the order of the acquittal into one of conviction
and that result can be achieved only by adopting procedure prescribed under s.
439 of the Criminal Procedure Code. [647 D-F] State of Andhra Pradesh v. Thadi
Narayana, A.I.R. 1962 S. C. 240, applied.
The High Court erred in taking the view that
s. 149 I.P.C.
did not constitute a substantive offence and
that it was only an enabling section for imposition of vicarious liability and
that the conviction on vicarious liability could, therefore, be altered by the appellate
court to conviction for direct liability even though there was an acquittal by
the trial court of the direct liability for the- offence. There is a legal
distinction between a charge under s. 302 I.P.C. and a charge of constructive
liability under s. 302/149, I.P.C., I.e., being a member of an unlawful
assembly, the common object of which was to kill a person. (647 G, H] Barendra
Kumar Ghosh v. Emperor, I.L.R. 52 Cal. 197, Queen v. Sabid Ali and Ors. [1873]
20 W.R. (Cr.) 5 Nanak Chand v.
State of Punjab, [1955] 1 S.C.R. 1201 and
Suraj Pat v. State of Uttar Pradesh, (19551 1 S.C.R. 1332. referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 214 of 1963.
Appeal by special leave from the judgment and
order dated September 18, 1963 of the Patna High Court in Criminal Appeal No.
368 of 1961.
644 Nur-ud-din Ahmed and D. Goburdhun, for
the appellants.
The respondent did not appear.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, from the judgment of
the High Court of Patna dated September, 1963 in Criminal Appeal No. 368 of
1961.
The appellant, alongwith 13 others, was tried
by the Additional 'Sessions Judge of Patna who by his judgment dated April 22,
1961 convicted all the accused under ss.
302/149, Indian Penal Code and sentenced them
to undergo rigorous imprisonment for life. Lakhan and Indo were convicted under
s. 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for
two years and Gopi was convicted under s. 147, Indian Penal Code and sentenced
to rigorous imprisonment for one year. Indo was also -convicted under s. 326, Indian
Penal Code and Gopi was convicted under s. 326/109, Indian Penal Code and were
sentenced to undergo rigorous imprisonment for eight years.
Appellant Lakhan was convicted under ss.
326/149, Indian Penal Code but no separat sentence was awarded on this charge.
Lakhan and Indo were convicted under s. 19(f) of the Arms Act and sentenced to
undergo rigorous imprisonment for two years each. Five of the accused persons were
acquitted and 8 of them were convicted on charges The appellants along with 8
others who were so convicted, appealed to the High Court of Patna which allowed
the appeal of the 8 persons but dismissed the appeal of the appellants with the
following modifications: The conviction of the appellants under ss. 302/149, Indian
Penal Code, s. 148, s. 147 and ss. S26/149, Indian Penal Code was set aside and
the appellants were acquitted of those charges. The conviction of Lakhan under
s. 302/149, Indian Penal Code was altered into a minor offence under s. 326, Indian
Penal Code, but the sentence of life imprisonment imposed upon him was
maintained. The conviction and sentence of Indo under s. 326, Indian Penal Code
and of Gopi under ss. 326/109, Indian Penal Code were upheld. The conviction
and sentence of Lakhan and Indo under s. 19(f) of the Arms Act were also
upheld.
The case of the prosecution is that on
October, 7, 1959 at about 10 a.m. deceased Sheosahay Mahto went to look after
his paddy field in Belwa Khandha. On arriving at the spot, he found appellant
Lakhan and one Ishwar putting up a net for catching fish in his field after
cutting one of its ridges. Sheosahay protested and there was an altercation
between the parties. Sheosahay threw aside the net and Ishwar and appellant
Lakhan went away towards the village.
Sheosahay then repaired the ridge of the 645
field and after weeding some grass he was returning to the village along the
Bazerachak Road. While he was passing by the side of a brick-kiln, appellant
Lakhan suddenly emerged from behind it with a pistol in his hand and fired at
Sheosahay hitting him on his chest. Sheosahay staggered for a few steps and
fell down at the house of one Baiju. There were 15 or 20 other persons
variously armed in the company of Lakhan. Mst. Akhji P.W. 3 wife of Jitu P.W.7
heard the report of a gunfire while she was in her house situated near the
house of Baiju. She came out of her house and saw Sheosahay lying fallen in the
village lane. She protested to Gopi who became furious and ordered that she
should be assaulted. Upon his order, Rajendra who was carrying a gun fired at
Akhji, P.W.3 on her left arm. After committing the assault all the members of
the mob fled away. On the same evening, at about 5 p.m. a first information
report was drawn up by the Assistant SubInspector of Police, P.W. 14 on the
statement of Sheosahay and both the injured persons were forwarded to Nawadah
hospital where Sheosahay died early next morning.
The appellants pleaded not guilty to the
charges and alleged that they were falsely implicated on account of previous
enmity. The trial court held that it was unsafe to convict appellant Lakhan on
the specific charge under s. 302, Indian Penal Code for causing the death of
Sheosahay as it appeared from the dying declaration of the deceased (Ex. 8)
that accused Ishwar had also shot at him and as such appellant Lakhan was
entitled to benefit of doubt. The trial court accordingly acquitted Lakhan on
the charge under s.302, Indian Penal Code but convicted him and 2 other
appellants under s. 148, Indian Penal Code and ss. 302/149, Indian Penal Code.
The State Government did not prefer an appeal to the High Court against the
acquittal of Lakhan on the charge under s. 302, Indian Penal Code but on appeal
preferred by the appellant against the judgment of the Sessions Judge, the High
Court altered the conviction of Lakhan from s. 302/149, Indian Penal Code to a
minor offence under s. 326, Indian Penal code and maintained the sentence of life
imprisonment imposed upon him. The view taken by the High Court was that the
evidence of P.Ws. 1, 6, 7 and 8 should be accepted as true and it must he held
that it was Lakhan who fired the pistol at the deceased and it was Lakhan alone
who fired the pistol shot and not Ishwar. The High Court held that it was
competent to it in the appeal preferred by the appellant to alter the
conviction of Lakhan from the constructive offence under s. 302/149, Indian
Penal Code to the substantive offence under s.302, Indian Penal Code, but
"in order to obviate any technical objection" the High Court altered
the conviction under s.302 read with s. 149 to a minor offence under s. 326, Indian
Penal Code and regard being had to the gravity of the offence, the High Court
maintained the sentence imposed upon Lakhan.
646 On behalf of appellant Lakhan learned
Counsel submitted that he had been acquitted by the trial court on the specific
charge under s. 302, Indian Penal Code for the overt act of shooting at the
deceased Sheosahay and he was convicted under ss. 302/149, Indian Penal Code
for being a member of an unlawful assembly, the common object of which was to
kill deceased Sheosahay. It was pointed out that the State Government had not
preferred an appeal against the acquittal of Lakhan on the charge under s. 302,
Indian Penal Code. It was submitted that the High Court cannot, in the absence
of an appeal preferred in this behalf, convict Lakhan again under s. 302, Indian
Penal Code or under s. 326, Indian Penal Code for the overt act of shooting. It
was also pointed out for the appellant that there was the finding of the High
Court that there was no unlawful assembly and consequently Lakhan was acquitted
of the charge under s. 302, I.P.C. read with s. 149, I.P.C. The argument,
therefore, presented on behalf of appellant Lakhan is that the conviction and
sentence of Lakhan for a substantive offence under s. 326, I.P.C. was illegal
and must be quashed.
The powers of the appellate court in
disposing of an appeal are prescribed by s. 423 of the Criminal Procedure Code
which states "423.(1) The Appellate Court shall then send for the record
of the case, if such record is not already in Court. After perusing such
record, and hearing the appellant or his pleader if he appears, and the Public
Prosecutor, if he appears, and, in case of an appeal under section 41 1 -A,
subsection (2) or section 417, the accused, if he appears, the Court may, if it
considers that there is no sufficient ground for interfering, dismiss the
appeal, or may- (a) in an appeal from an order of acquittal, reverse such order
and direct that further inquiry be made, or that the accused be retried or
committed for trial, as the case may be, or find him guilty and pass sentence
on him according to law;
(b) in an appeal from conviction, (1) reverse
the finding and sentence, and acquit or discharge the accused, or order him to
be retried by a Court of competent jurisdiction sub- ordinate to such Appellate
Court or committed for trial, or (2) alter the finding maintaining the sentence
or, with or without altering the finding, reduce the sentence, or, (3) with or
without such reduction and with or without altering the finding, alter the
nature of the sentence, but, subject to the provisions of section 106,
sub-section (3), not so as to enhance the same;" Section 423 (1)(a)
expressly deals with an appeal from an order of acquittal and it empowers the
Appellate Court to reverse the 647 order of acquittal and direct that further
inquiry be made or that the accused may be tried or committed for trial, as the
case may be, or it may find him guilty and pass sentence on him according to,
law. Section 423(1)(b) in terms deals with an appeal from a conviction, and it
empowers the Appellate Court to reverse the finding and sentence and acquit or
discharge the accused or order a retrial by a Court of competent jurisdiction
subordinate to such Appel- late Court or committed for trial. It has been held
by this Court in The State of Andhra Pradesh v. Thadi Narayana(1) that s.
423(1)(b), Criminal Procedure Code is clearly confined to cases of appeals
prefeffed against orders of conviction and sentence, and that the powers
conferred by this clause cannot be exercised for the purpose of reversing an
order of acquittal passed in favour of a party in respect of an offence charged
while dealing with an appeal preferred by him against the order of conviction
in respect of another offence charged and found proved. It was also pointed out
in that case that where several offences are charged against an accused person
the trial is no doubt one; but where the accused person is acquitted of some
offences and convicted of others the character of the appellate proceedings and
their scope and extent is necessarily determined by the nature of the appeal preferred
before the Appellate Court.
If an order of conviction is challenged by
the convicted person but the order of acquittal is not challenged by the State
then it is only the order of conviction that falls to be considered by the
Appellate Court and not the order of acquittal. In exercising the powers
conferred by s.
423(1)(b) the High Court cannot therefore
convert the order of acquittal into one of conviction and that result can be
achieved only be adopting procedure prescribed under s. 439 of the Criminal
Procedure Code. In our opinion, the principle of this decision applies to the
present case and it must accordingly be held that the High Court acted without
jurisdiction in altering the finding of acquittal of Lakhan on the charge under
s. 302, Indian Penal Code and convicting him on the charge under s. 326, Indian
Penal Code and imposing a sentence of imprisonment on that charge.
In this connection the High Court has taken
the view that s. 149, I.P.C. does not constitute a substantive offence and it
was only an enabling section for imposition of vicarious liability and the
conviction on vicarious liability can, therefore, be altered by the appellate
court to conviction for direct liability, though there was an acquittal by the
trial court of the direct liability of the offence. In our opinion, the view
taken by the High Court is not correct.
There is a legal distinction between a charge
under s. 302, I.P.C. and a charge of constructive liability under ss.
302/149, I.P.C., i.e., being a member of an
unlawful assembly, the common object of which was to kill the deceased
Sheosahay. In Barendra Kumar Ghosh v. Emperor (2) Lord Sumner dealt with (1)
A.I.R. 1962 S.C. 240.
(2) I.L.R. 52 Cal. 197.
648 the argument that if s. 34 of the Indian
Penal Code bore the meaning adopted by the Calcutta High Court, then ss. 114
and 149 of that Code would be otiose. In the opinion of Lord Sumner, however,
s. 149 was certainly not otiose, for in any case it created a specific and
distinct offence. It postulated an assembly of five or more persons having a
common object, as named in s. 141 of the Indian Penal Code and then the
commission of an offence by one member of it in prosecution of that object.
Lord 'Sumner referred, in this connection, to the decision of the Calcutta High
Court in Queen v. Sabid All and Others(1). The observation of Lord Sumner was
quoted with approval by this Court in Nanak Chand v. The State of Punjab(2) in
which it was pointed out that by framing a charge under s. 302, read with
s.149, Indian Penal ,Code against the appellant it was not charging the
appellant with the offence of murder and to convict him for murder and sentence
him under s. 302 of the Indian Penal Code was to convict him of an offence with
which he had not been charged. It was accordingly held that the conviction of
the appellant under s. 302, I.P.C. was illegal. The same view has been
reiterated by this Court in a 'later case in Suraj Pal v. The State of Uttar
Pradesh.(3) For these reasons we hold that the conviction and sentence imposed
by the High Court on Lakhan under s. 326, Indian Penal Code is illegal and must
be set aside.
On behalf of the appellants it was also
contended that the prosecution had not been able to establish the other charges
of which they have been convicted, but having heard learned Counsel we are not
satisfied that the convictions on the other charges are vitiated by any
illegality and we see no reason for interfering with the judgment of the High
Court.
As already pointed out, we set aside the
conviction and sentence imposed on Lakhan on the charge under s. 326, Indian
Penal Code; -otherwise we affirm the decision of the High Court as regards
Lakhan and also as regards the other two appellants and dismiss ,this appeal.
Appeal dismissed.
Conviction and sentence modified.
(1) [1873] 20 W.R. (Cr.) 5.
(2) [1955] 1 S.C.R. 1201.
(3) [1955] 1 S.C.R. 1332.
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